The Law on Protection provides for the appointment of a legal representative to an unaccompanied child – a special guardian (kurator).[1] There are no exceptions; each child has to have a legal representative and all unaccompanied children get one in practice. The Head of the Office for Foreigners or the BG immediately lodges the request to the district custodial court. The court appoints the legal representative. Under the law, the deadline for appointing the guardian is 3 days. There is no information on compliance with this rule in practice. One guardian is appointed for the following proceedings: international protection, Dublin procedure, social assistance, and voluntary return.
There is no special requirement in the Law on Protection for being eligible as a representative of an unaccompanied child for an asylum procedure: the representative should be an adult and have legal capacity. Under the law, only the person who undertakes procedural acts in the proceedings granting international protection to an unaccompanied minor should fulfil certain conditions.[2] No remuneration is provided to legal representatives. In practice, in the last years, there were problems arising from the insufficient numbers of trained legal representatives for unaccompanied children. NGO personnel and students of legal clinics at universities are appointed as guardians. The legal representative should be present during the interview, together with a psychologist, and may ask questions and make comments.[3]
The Border Guard reports that since December 2015, they use a list of NGO workers who declared their willingness to be a representative of a child.[4] However, as the Border Guard confirms, due to the lack of funding, some NGOs withdrew their representatives from the list. The last update of that list took place in 2019. As of 2022, there were a total of 11 legal representatives on the list, for a total number of 217 unaccompanied children.[5] Their presence on that list is not binding, which means they are not obliged to become a representative.[6]
In Poland, according to the Commissioner for the Rights of the Child (Ombudsperson for Children), ensuring legal representation for unaccompanied children remains a challenge, as the legal provisions are not adapted to the needs of such children.[7] Moreover, in 2018, the Commissioner for the Rights of the Child called on the Ministry of Justice to introduce a special type of legal representation for unaccompanied foreign children in Poland. In the opinion of the Commissioner, this would allow a comprehensive and stable representation of a foreign child on the Polish territory, bearing in mind their best interest. The Commissioner criticised the fact that guardians were appointed for concrete proceedings or set of proceedings and they did not have a closer relation with a child, which impeded decision-making and assessing the children’s best interest in other fields (such as education, medical care, etc.).[8]
In the shadow report to the Committee on the Rights of the Child from 2020, NGOs stress that some guardians do not have any personal contact with the unaccompanied minor they represent and because of such a practice, the child does not have much information on their legal situation.[9]
Children do not have access to any information that would be adjusted to their age (leaflets, websites). Additionally, guardians are not supported by interpreters, which makes communication even more difficult.[10]
Problems concerning legal representations of unaccompanied minors are pictured in a case litigated by the Commissioner for Human Rights in 2022.[11] An unaccompanied minor O.A. was intercepted by the Border Guard with a group of other foreigners 60 km from the border with Belarus. On the same day, the Border Guards issued to all of them orders to leave Poland. The unaccompanied minor was considered a dependent of another foreigner and returned in the same manner. Two days later, O.A entered Poland again. This time he was appointed a legal guardian, was placed in foster care and applied for international protection. The Commissioner for Human Rights lodged a complaint against the order to leave Poland to the Voivodeship Administrative Court in Bialystok. In the complaint it was brought up, i.a., that the Border Guard took no action to identify O.A. as an unaccompanied minor and infringed the Convention on the Rights of the Child by not appointing a legal guardian, ensuring his best interest. In the judgement from 27 October 2022, the Court admitted that the unaccompanied minor should have had a legal guardian appointed for the case and the lack of appointment indeed constituted an infringement of Article 12 of the Convention of the Rights of the Child. The Court also noted that the Border Guard should have informed the intercepted foreigners about the possibility to apply for international protection in order to respect the principle of non-refoulement (the case is also described in the section on Registration).
In Poland, unaccompanied children are placed in various intervention facilities instead of being placed in a central institution. After the court ruling appointing the representative, they can be placed in foster care facilities or foster families. In 2022, as in the past years, unaccompanied minors were mostly placed in foster care facilities in Kętrzyn (16 persons) – due to the proximity to the detention centre in Kętrzyn, from which they are released because of age – or in Warsaw (4 persons). In 2022, they were placed also in Elk (4 persons), Gorzów Wielkopolski (3 persons) and Wasilków (3 persons).[12]
When the asylum procedure is finished with a negative decision, the minor remains in the same foster family or institution.
In 2022 there were 217 unaccompanied children (up from 199 in 2021) applying for international protection in Poland.[13] According to the Office for Foreigners, the vast majority of procedures are discontinued because of implicit withdrawal of the application (the minors leave the centres and do not return), in the case of some nationalities (e.g. Vietnamese) the percentage of discontinued applications is 100%.[14]
[1] Article 61 Law on Protection.
[2] Article 66 Law on Protection.
[3] Article 65(3) and (4) Law on Protection.
[4] Information provided by the Border Guard, 17 January 2023.
[5] Information provided by the Border Guard on 4 March 2022, KG-OI-III.0180.7.2022/JL, still applicable for 2022.
[6] Information provided by the Border Guard, 17 January 2023.
[7] Fundamental Rights Agency, Migration: Key fundamental rights concerns, Bulletin 2, p. 27, available (EN) at: https://bit.ly/3GENm1Q.
[8] The Commissioner for the Rights of the Child, letter to the Ministry of Justice, 2 July 2018, available (in Polish) at: http://bit.ly/2SemlZK. These letters are no longer available online once the Commissioner for the Rights of the Child changed and the website is being rebuild.
[9] NGOs alternative report to the government report on implementation of the Convention of the Rights of the Child, submitted to UNICEF, August 2020, available (PL) at: https://bit.ly/3s3hZXK.
[10] NGOs alternative report to the government report on implementation of the Convention of the Rights of the Child, submitted to UNICEF, August 2020, available (PL) at: https://bit.ly/3s3hZXK.
[11] Judgement of the Voivodeship Administrative Court in Bialystok, no II SA/Bk 558/22 of 27 October 2022, see the judgement and comments from the Ombudsman: https://bit.ly/40HvxsO .
[12] Information provided by the Office for Foreigners, 3 February 2023.
[13] Information provided by the Office for Foreigners, 3 February 2023 and 26 January 2022.
[14] Information provided by the Office for Foreigners, 15 January 2019.